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Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics. Tuesday, September 13, 2022 at 12:30pm ET
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Pride at Work: What Employers Need to Know about LGBTQ+ Rights
As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.
Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.
According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.
Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.
As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.
So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:
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Upcoming Webinar: NOT NORMAL – The Challenges of a Changed Workplace
JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST
Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in
The Answer is Clear—Title VII Will Protect Gay and Transgender Workers
In a long awaited landmark ruling by Justice M. Gorsuch, the Supreme Court ruled that Title VII protects gay and transgender workers. The Opinion provides:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear . . . An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Justice Gorsuch was joined by Chief Justice Roberts and by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
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Webinar: Pandemic – But Don’t Panic
JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST
Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel as they share practical advice for employers looking to keep employees
Managing Your Workforce During COVID-19
As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.
There are three overriding rules that all employers should remember:
- Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
- Think about how you can keep your business going. Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
- Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.
Below are some general answers to questions our clients have been asking. However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.
Employer Survival Kit: Coronavirus Edition
With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.
Know Your Resources
Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:
- Up to date information on COVID-19 can be found here: Coronavirus Disease 2019 (COVID-19)
- The CDC’s interim guidance to employers can be found here: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020
- Information regarding employee travel can be found here: Traveler’s Health
- The CDC’s Interim Guidance for Risk Assessment Guide can be found here: Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposure in Travel-associated or Community Settings
LGBTQ Rights Making News and Making Law In Recent Weeks
In the past two weeks, we saw two major decisions in the area of LGBTQ rights in the workplace.
First, the Second Circuit in New York held that Title VII does prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018). In Zarda, the New York court overturned past precedent and held that the late Donald Zarda, a skydiving instructor who claimed that he was fired because he was gay, had a viable claim of gender discrimination under Title VII.
Second, the Sixth Circuit Court of Appeals reversed a district court’s decision on EEOC v. R.G. &. G.R. Harris Funeral, rejecting the notion that religious beliefs offer an excuse or reason to discriminate. This case took a sharp turn last week when the court held that the Harris Funeral Home had violated Title VII when it terminated Aimee Stephens, a transgender female employee, because she wanted to wear a skirt to work. No. 16-2424 (6th Cir. March 7, 2018). Ms. Stephens transitioned from male to female and the owner of the home (Thomas Rost) claimed that it violated his religious beliefs to allow plaintiff, a biological male, to wear a skirt to work. Ms. Stephens was ultimately fired over this issue. The District Court agreed with Mr. Rost citing the Religious Freedom Restoration Act (RFRA), which entered final judgment on all counts in the Funeral Home’s favor in August 2016.
On appeal, the Sixth Circuit found that Mr. Rost’s Christian beliefs did not override the employee’s right to express her gender. Thus, even considering the employer’s rights under the RFRA, Mr. Rost did not have the right to dictate his employee’s attire. In other words, Ms. Stephens had a right to wear a skirt to work and therefore, was unlawfully terminated.
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Gay Bias Is Still In The News
The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation. The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc.
Seventh Circuit Rules Title VII Bars Sexual Orientation
On April 4, 2017, the Seventh Circuit became the first federal appellate court in the country to extend the protections afford by the Civil Rights Act of 1964 to discrimination on the basis of sexual orientation. The 8-3 decision came after they held a rare en banc hearing on Kimberly Hively’s case (Hively v. Ivy Tech Community College).
The majority opinion written by Chief Circuit Judge Diane P. Wood cited several U.S. Supreme Court cases, including Price Waterhouse v. Hopkins and Loving v. Virginia, and agreed with Hively’s argument that, but for her gender, her employer would have kept her on staff.
“The Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” Judge Wood wrote.
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